State ex rel. Davis v. Walker

2011 Ohio 5282

• Court: Ohio Court of Appeals
• Decided: October 12, 2011
• Docket: 97341
• Status: Published

Opinion

[Cite as State ex rel. Davis v. Walker, 2011-Ohio-5282.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97341

STATE OF OHIO EX REL. KENNETH DAVIS, JR. RELATOR vs.

HONORABLE SANDRA WALKER, JUDGE RESPONDENT

JUDGMENT: DISMISSED

Writ of Procedendo Order No. 448219

RELEASE DATE: October 12, 2011

-i- 2

FOR RELATOR:

Kenneth Davis, Jr., Pro Se Inmate #A-564-782 Lake Erie Correctional Institution P.O. Box 8000 Conneaut, Ohio 44030

ATTORNEY FOR RESPONDENT:

Ronald K. Riley Director of Law City of East Cleveland 14340 Euclid Avenue East Cleveland, Ohio 44112

KENNETH A. ROCCO, J.:

{¶ 1} Relator, Kenneth Davis, Jr., avers that he is the defendant in E. Cleveland v.

Davis, E. Cleveland Municipal Court Case No. 08TRD04307. Davis requests that this

court compel respondent to rule on his motion to withdraw plea.

{¶ 2} In Hazel v. Knab, ___ Ohio St.3d ___ , 2011-Ohio-4608, ___ N.E.2d ___

, petitioner Hazel was incarcerated and filed an action in habeas corpus. “* * *

[A]lthough he filed an affidavit of indigency and sought waiver of prepayment of the

court’s filing fees, he failed to include in his affidavit of indigency a statement setting 3

forth the balance in his inmate account for each of the preceding six months, as certified

by the institutional cashier, in violation of R.C. 2969.25(C). “The requirements of R.C.

2969.25 are mandatory, and failure to comply with them subjects an inmate’s action to

dismissal.’ State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, 788 N.E.2d

634, ¶5. Hazel’s subsequent filing of the statement did not cure the defect. See R.C.

2969.25(C); see also Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797

N.E.2d 982, ¶9.” Id. ¶1. The supreme court affirmed the judgment of the court of

appeals dismissing Hazel’s petition in habeas corpus.

{¶ 3} Davis is currently incarcerated. He states that the “Certificate of the

Institutional Cashier” is attached to his affidavit seeking waiver of prepayment of the

court’s filing fees and affidavit of indigency pursuant to R.C. 2969.25(C). A thorough

review of the original affidavit and the copies filed with the court, however, reflects that

Davis has not filed the R.C. 2969.25(C) cashier’s statement. As noted in Hazel, this

defect requires dismissal of this action and cannot be cured by supplementing the

complaint with the cashier’s statement later.

{¶ 4} Accordingly, we dismiss this action sua sponte. Relator to pay costs. The

clerk is directed to serve upon the parties notice of this judgment and its date of entry

upon the journal. Civ.R. 58(B).

Complaint dismissed. 4

_______________________________ KENNETH A. ROCCO, JUDGE

PATRICIA ANN BLACKMON, P.J., and MARY J. BOYLE, J., CONCUR